Monte Cook Games just released their Fan Use Policy and Limited License. This post by Rob Donoghue at Evil Hat almost perfectly mirrors my opinion on the licenses, and there’s also an excellent follow-up post at the Ninth World blog. Apparently some folks have been fairly upset about the licenses. I’m honestly not all that sure why. I may have some things I would have done a bit differently. I give them a big thumbs up for making the licenses human readable, but there are parts of them to the point where they are technically incorrect by omission. For example, their description of copyright is very, very simple- it ignores copyright exemptions and the role that commercial use plays in determining whether or not something is infringing- but that gets complicated quickly, which seems antithetical to their purpose for writing it that way in the first place. The policy provides simple explanation about how they’re looking at things, though, and it seems like it’s mainly there to help the community understand their views on fan use. I’m also sure they’re going to clarify the dividing line between fan distribution and distribution allowed by the Limited License if it ever comes up, and like Donoghue points out, you can still rely on fair use if you want to make other uses (aside: or that mechanics aren’t covered by copyright)- or of course, you can also talk to the folks at Monte Cook Games. They’re very approachable.

There are registered and unregistered (common law) trademarks. Common law trademarks are more limited then their federally registered counterparts- they’re developed merely by using the trademark commercially, not registered, and usually related to a specific geographical region. They also lack some other statutory protections. For something to act as a trademark, it usually needs to be involved in trade- actual commerce. And not only does it need to be involved in trade, but it needs to be involved in trade in a specific commercial area. Apple Computers (now Apple Inc.), for example, didn’t have to worry too much about competing with the very different company Apple Music (owners of the Beatles catalog) until it got involved with iTunes and the music industry, and then those companies had to work things out because they were competing in the same area. And neither of them should be too concerned with people selling the fruit. Trademark does not have much to do with creativity- that’s largely copyright’s bailiwick- and, in fact, things can at times be trademarked that other people created, even against their wishes.

One of the things about trademark, though, is that unlike copyright and patents there is an obligation for trademark holders to protect their trademarks. Generic terms can’t be trademarked- and once a term has become generic, then it loses its trademark protection (this process is sometimes referred to as trademark erosion). Aspirin. Elevator. Kerosene. Zipper. All of those were once trademarks that have been lost. That’s why trademark holders for Kleenex, Band-Aids and Xeroxes try very hard to make sure that those terms don’t become generic. Even given all that, though, there are limits.

So, “Space Marines.” Space Marines is a term that has been around for some time in fiction. It’s also a term used by Games Workshop in its miniatures and games lines. Games Workshop does have a registered trademark for space marines for those lines- but although they’ve created fiction involving their space marines, they do not have a registered trademark in the book/ebook space. In this kerfluffle, they contacted Amazon to take down a book that used the term “space marine” in the title. Why? What they seem to be attempting to assert in this situation is that they have common law trademark in the term “space marine” in books and ebooks. Essentially, they appear to be arguing that anyone who thinks “space marines” in fiction should think “Games Workshop.” They seem to be trying to un-genericize the term and create a carved out commercial space for them and then alone, excluding others, which according to their press release is because they have a duty to their shareholders. This is a Bad Thing for many reasons, and the whole event illustrates some of the problems with the system and the law that I alluded to in my last post.

First, of course, there’s the obvious idea that they’re taking a term with a rich history in fiction and attempting to privatize it. There’s a power discrepancy between Games Workshop and the indie author. There’s also the idea that Games Workshop has to be predatory in this manner to appease their shareholders. That’s silly- negative publicity will also hurt their profits. That’s one reason why the controversy is important- people have to show GW and others that this type of behavior isn’t acceptable. And people have reacted. There’ve been author complaints, blost posts, news articles, comments- I even discovered that someone at my school had been a fan of Games Workshop fiction, who has now sworn off of them. That’s bad for everyone.

So far, all GW has done is double down- they’ve reiterated that they were right to do this, and for a time they also deleted and banned people who commented on their Facebook wall about it. They even banned a fellow academic who was only asking for their side of the story. They are allowing comments on their explanation, but they’re sticking to their guns. That’s not good corporate behavior. While their actions might be technically legal, that doesn’t make it right.

Now, Amazon also messed up. Games Workshop sent them a cease-and-desist, and they unnecessarily complied. While there IS a notice-and-takedown provision for taking down copyrighted material, there is no such equivalent for trademarks. They’ve since made the book available again, possibly thanks to some help from EFF. And Spots the Space Marine by MCA Hogarth has received a lot of attention, and portions of sales are donated to the Wounded Warrior Project, so there’s some positives there. Let’s hope Games Workshop learns something, too.

These stories provoked outrage among various groups of fans and other folks on the Internet: it’s evident that *something* isn’t right, or fair going on in each of these situations. I see the problems as related to a) the law, and b) how legal practices work, e.g., tends to favor those with money.

The Coulton event (2) primarily deals with copyright. The Games Workshop event primarily deals with trademark. These are related subjects, but they are quite different legally. Popular articles/accounts often confuse the two. I’ll talk about each in turn.

Let’s look at the copyright issue. Copyright is my area of study. My favorite copyright attorney once described copyright to me as “arcane” (2) and “labyrinthine.” It can be confusing, understood by few and overly complicated. Over time, it’s played a bigger and bigger role in people’s everyday lives. Whereas in the 70s, I’m told, you would have to exert yourself to find a story about copyright in the news, today I go through several a day. So, here’s a quick and dirty look at the situation:

COULTON & GLEE

Jonathan Coulton probably used what’s referred to as a statutory compulsory mechanical license to cover Sir Mix-a-Lot’s “Baby Got Back” a few years ago. Glee then copied that arrangement for an episode. What’s that all mean?

So, copyright covers several uses of a work. Absent an exception (3), such uses are the exclusive right of the copyright holder (4). One of those rights is the creation of a derivative work, which to keep things simple we’ll say a work based on an already existing work. However, once upon a time Congress cared about making sure that copyright holders couldn’t completely lock down content. Cover songs have a special place in copyright law (5). Basically, the copyright holders of a song (6) cannot stop someone from making a cover song provided the person making the cover song uses the statutory compulsory mechanical license. Statutory = in the actual statute. Mechanical = making a “mechanical” reproduction of the song (the term is from sheet music days, but basically means making a copy). Compulsory = the copyright holder cannot deny this use if the law is followed. The person making the cover has to pay a compulsory rate to the song writer, the amount of which is determined by the Copyright Royalty Board every few years. The total amount is based on things like the number of copies sold, the number of people who hear the song, and so on.

So Jonathan Coulton called up the Harry Fox Agency (the group that usually handles the compulsory license) and got a license to make a cover of Baby Got Back.

So if you’re not lost yet, now it gets complicated. =P

While the compulsory license does allow you to create a reinterpretation of the work, it does not allow you to change “the fundamental character” of a work with your reinterpreation (which can lead to legal fun), and more on point, the statute (17 USC 115(a)(2)) explicitly does not convey additional copyright protection to the new arrangement without consent of the copyright holder. So unless Coulton got permission from the copyright holder of Baby Got Back, then he doesn’t have copyright protection for his arrangement.

So, Glee basically got the same or a similar license from the Harry Fox Agency, and since Coulton didn’t have copyright protection in the arrangement, they could legally use the arrangement without legal hassle.

He might have some protection if they actually used his tracks, though, because unlike the arrangement, those specific recordings ARE probably protected by copyright. And that’s probably what he’s looking into.

The other thing to remember is this: in most situations, license trumps copyright law. If the specifics of Jonathan Coulton’s license come into play at all, a lot of the legal issues can’t be figured out by looking at the statute.

So… is what Glee did legal? Maybe, if they didn’t use the exact recordings (which is in dispute). Is it fair and/or ethical? Heck no. This is one of those disconnects between law and fairness. Coulton should be getting credit for his arrangement without having to shame Fox.

1. …The Coulton Event is the name of my Paul & Storm cover band… *drumbeat*
2. Definitely arcane. The next time your party wizard starts going off about magic, pretend he’s talking about copyright and RP accordingly.
3. There are many exceptions. Don’t think that copyrights are the be-all and end-all; these exceptions are important.
4. The copyright holder is not necessarily the author/creator. Keep that in mind.
5. And the Abyss.
6. And songs can have lots of copyright holders. The song writer, the lyric writer, the performer… it takes a village, people.

10-Oct-12

I remain perplexed that the plaintiffs argued that the Section 108 exception for libraries and archives precluded a fair use argument, when the plain text of the statute states otherwise. Anyway, that got shut down quickly (pp. 12-13). The judge performed a great fair use evaluation, and examined whether the decision to allow or not allow these uses would promote progress. Awesome.

21-Jun-12

Emily White, an intern at NPR, wrote an article called I Never Owned Any Music To Begin With, in itself a response to I Just Deleted All My Music. In her piece, she mentions that she’s only purchased 15 CDs in her life. Reading the article, I thought her key point was that one of the key differences between her and the person who wrote the earlier piece is that the digital is all she’s known. Most of the music she has is digital and is not purchased in CD form, and a lot of what she has or listens to she got for free. She talks about using legitimate services like Spotify, and she talks about what she’d like to see to pay for music, and importantly, make sure that money gets back to the artist, because existing ways of doing so don’t work very well.

David Lowery responded with a letter to Emily. The letter has been widely distributed and shared, and “sounds about right,” according to some people and a number of the comments. And there are parts of it that I completely agree with. There are also portions that I find very problematic. I think that a lot of the issues deserve more discussion.

There’s so much here that it’s difficult to even start, even in this informal blog post. But let’s go over a few of the problematic areas: the attack on the free culture movement, the numbers and the confusing of some important issues.

Lowery, in part, uses the article to attack the free culture movement, and does so in a way that I find troubling.

First, I’m not entirely certain what he is referring to as the free culture movement is and what groups it constitutes. Since Lowery has strongly criticized Lawrence Lessig in the past, let’s assume that he’s referring to some of the things that Lessig has been associated with- his works (including the book Free Culture), the freeculture.org student site, the Creative Commons, and related areas like Open Source and Free software. (Ironically, as a friend points out, he’s using free/open source software for the piece he’s using to attack free culture).

If that’s what he means, he’s incorrect about a few things. Let’s try to clear them up. Most people that I’ve heard agree with him think that he’s referring to the idea that everything should be free and given away and file sharing should be legal and artists shouldn’t get paid etc. etc. etc. But that’s not what he’s referring to. That’s a straw man.

The free culture movement doesn’t want to abolish copyright. The free culture movement does want to reform copyright, and a lot of what the free culture movement does- like Creative Commons and Open Source licensing- relies on copyright law. Specifically, the free culture movement opposes some of the more extensive and recent changes to copyright law in a digital environment. A great deal of this refers to the criminalization of non-commercial behaviors, which may include unauthorized file-sharing. Here’s the thing: unauthorized file-sharing can be illegal and unethical without being a criminal (as opposed to civil) matter. Lessig decries unauthorized file-sharing. Persons involved with the movement note specific harms that have come about as a result of the increasingly complex and unbending copyright law, and would like to see certain aspects of it changed. That’s a lengthy, lengthy discussion that people have written about extensively, but that certainly deserves to be discussed further.

The free culture movement wants artists to be compensated. This is what kills me. Free culture thinks that artists should make money, and many people would like to help artists find business models that work in the digital environment. Furthermore, many of those changes in copyright law hurt the artists. One thing that Lowery does- which is a very, very common mistake- is equate artists with copyright holders. They’re not. Another common critique from free culture components is that the expansiveness of copyright law tends to increase the power of gatekeepers at the expense of the creators.

The free culture movement isn’t a giant technology conspiracy. There is a strong technology component to the free culture movement, and part of that is from self-interest. But there’s a lot more to it than that. The free culture movement was really spawned by technology. Digital creation and distribution were key parts of its formation. Open Source and Free Software were some of the models that the free culture movement used. Many of the companies themselves rely on open source software- if you look at his link to funders, you’ll note such companies, like Google and the Mozilla Foundation. Beyond that, though, changes to copyright law have tremendous impact on technology- not just the companies, but to things like writing software, or the Internet. That’s why the free culture movement was a lot of the impetus behind the arguments against SOPA and PIPA.

“Free” isn’t a new concept, even outside of the digital environment. And I agree with Lowery that “free” isn’t really free. There are costs associated with everything. That said, we have things like broadcast television. Radio. Libraries. These are examples of things that are “free” to consumers and came before digital technologies, but with which we have models to fund artists. Here’s the thing: even without unauthorized file-sharing, I think that artists would be having a pretty difficult time right now. And a lot of that is because of the new technologies and characteristics of the technologies themselves. And some of that is about the legal changes we’ve seen in the last couple of decades. I’m only going to briefly touch on this subject, but this is one that definitely deserves a lot more consideration.

For a better and more complete sense of the Free Culture movement, please try reading Lawrence Lessig, Siva Vaidhyanathan, Jessica Litman, Henry Jenkins, Edward Felten, Patricia Aufderheide, James Boyle, William Patry, and a host of others who write in the area. The thing is, there’s a great deal of agreement between the free culture movement and what Lowery is talking about- except he seems insistent on demonizing it. The “looting” analogy is particularly egregious and unfounded.

Lowery provides two truly sad anecdotes about musician friends of his was had suffered financially. And he writes, “[t]here is no other explanation except for the fact that “fans” made the unethical choice to take their music without compensating these artists.” Except… there are. As the Business Insider article notes (as have others), although copyright infringement probably plays a role, the biggest decline in revenue came from the change in music buying habits away from the recorded album towards the purchasing of singles. Furthermore, 1999 is the high point for revenue of the traditional music industry (while file sharing has been around since 1994), and in the next year the labels were forced by the FTC to change illegal price-fixing practices related to recorded music. The Business Insider article talks about some of the problems with those statistics. And keep in mind, even according to the IFPI (representing the recording industry internationally), recorded music is by no means the largest part of the market.

But we really do have to question where the numbers come from. First, there are issues with Nielsen SoundScan data, because it doesn’t include a number of digital distributors, such as TuneCore or CD Baby- or even all of the sales from iTunes. Digital sales are likely not as well represented as they should be. And even then, in 2011 even Nielsen Sound Scan has shown a (small, but existing) increase in recorded music sales from 2010. But it’s kind of hard to tell. We have to know where the numbers come from in order to evaluate them.

Let’s look at the number of professional musicians. In 1999, according to the Bureau of Labor and Statistics, we had 46,660 people who were considered professional musicians and singers with a mean annual wage of $37,510 and a median of $30,050. In 2011, we had 42,530 musicians and singers with a mean annual wage of $66,019 and a median of $47,819. The relative standard error of both employment and wages has improved. The numbers aren’t adjusted for inflation. What does it mean? At the very least, it means saying that we have 20 percent fewer musicians now than we did in 2000 isn’t the whole story.

The Future of Music coalition (also occasionally an RIAA source) has also weighed in on the subject. Their reports on musicians and revenue are very much worth reading, and you can examine their methodologies directly.

Two key areas related to a decline in artists’ income are increased competition between artists because of the lowering of barriers to creation, and increased competition for attention and money due to the lowering of barriers to distribution. For better and worse, entertainment is readily available, and as a result prices have seen a decline. That said, looking at entertainment overall- including video games, movies, music and so on- there’s been an increase in consumer spending. So there’s more money that goes around, but there’s also a lot more available to purchase. The musicians who tend to make more money tend to be the ones who are most comfortable with technology.

A few things that I want to mention that aren’t quite right.

There’s this: “The accepted norm for hudreds [sic] of years of western civilization is the artist exclusively has the right to exploit and control his/her work for a period of time. (Since the works that are are almost invariably the subject of these discussions are popular culture of one type or another, the duration of the copyright term is pretty much irrelevant for an ethical discussion.) By allowing the artist to treat his/her work as actual property, the artist can decide how to monetize his or her work.”

This isn’t quite right. See “Copyright in a Historical Perspective” by Lyman Patterson or “Copyrights and Copywrongs” by Siva Vaidhyanthan or just about any other historical text about copyright. Copyright did not exist for the development of much of Western civilization, and when what we consider modern copyright was established in the 1700s, it was not solely established for the artist (although authors, specifically, did benefit more than they had previously). Furthermore, the duration of the copyright term is a vital part of an ethical discussion on copyright- as is the scope of copyright. Copyright then is not and does not at all resemble what copyright has been for the last few decades. But I think this is actually a very important area of discussion, because this is the essence of what most of these arguments are actually about: control. The property metaphor has been discussed in multiple places elsewhere, but it should probably be touched on again.

“[B]y law the record label must pay songwriters (who may also be artists) something called a “mechanical royalty” for sales of CDs or downloads of the song. This is paid regardless of whether a record is recouped or not. The rate is predetermined, and the license is compulsory. Meaning that the file sharing sites could get the same license if they wanted to, at least for the songs. They don’t. They don’t wanna pay artists.”

The part about the license isn’t accurate. Beyond the obvious technical barriers involving file-sharing without a central hub, there is no way for a file-sharing site or program to legally use the mechanical royalty/compulsory license when the file-sharing is user-based, unauthorized and decentralized. The text of the statute, 17 USC § 115 can be found here). That still doesn’t make it right, but this particular argument is unfounded. Although I agree that having such an option available would be cool.

“And technically, Google’s policy is to not support piracy sites, however it seems to be rarely enforced. ”

He wrote some things I do agree with. Students come up with the darndest things. I do quibble with one bit- we do have many horror stories about record labels ripping off artists when they recoup advances, and I think that we definitely need to keep in mind that the copyright holder is not synonymous with the artist in many of these arrangements. But I agree that it’s not a justification for unauthorized file-sharing. It’s a justification for examining the artist/publisher relationship and things like the work-for-hire doctrine and how the existing laws can be used to hurt artists. And I completely agree that most artists aren’t wealthy, and that’s a terrible attempt to justify those activities. That artists make more money from touring shouldn’t be a justification, either, and that was true even before the net. I’ve heard more not-very-good excuses, and I’ll try to talk about them later.

What Emily’s really stumbled into isn’t a fight between starving artists and giant commercial technology companies. It’s not even a fight between starving artists and evil music labels. It’s a giant finger-pointing battle where everyone violently agrees with the conclusion- artists should be compensated somehow. And it’s far more complicated than Lowery’s or my blog post make it out to be.

And from reading her piece, although some of her music was probably infringement, I don’t think her only legally acquired music was those 15 CDs, even based on what she said. If I have time, I’ll go into that more later.

And I completely agree with Lowery on this part- buy music from the artists when you can. Support them. Donate to the worthy charities he mentions. The Health Alliance for Austin Musicians is indeed awesome, and the others are also worthwhile.

We’re never going to have a real conversation in the political sphere as things stand. We should be talking about relationships between authors, publishers, and distributors in the digital environment. We should be talking about the appropriateness of copyright-related remedies and their impacts on our society. We should be talking about the costs of access to scientific literature. We should be talking about authors’ rights in a meaningful way. Although we’re having those conversations, they’re mostly not initiated by policy makers. Instead, we get junk like this. We get secretive trade treaties where the public and public groups are left out of the discussion entirely. We get an environment where real meaningful dialog is absent.